What Is the Comstock Act
The Comstock Act is an 1873 federal law that bans sending “obscene” material and anything “designed, adapted, or intended for producing abortion” through the U.S. mail or by common carrier. It is still on the books today, at 18 U.S.C. sections 1461 and 1462. For about fifty years after Roe v. Wade it went unenforced, but it was never repealed, and since Roe was overturned in 2022 it has become the center of a fight over mailing abortion pills.
A Victorian anti-vice law turns out to still be enforceable text. Most of the 1873 statute was narrowed or struck over the next century. The one line about mailing abortion articles never went away, and it is the line in dispute now.
Key facts
- It is still law. 18 U.S.C. 1461 bans mailing any “article or thing designed, adapted, or intended for producing abortion.”
- It was never repealed. Congress struck the contraception language in 1971, but the abortion-mailing ban stayed on the books (KFF).
- It sat dormant for about 50 years after Roe v. Wade (1973) until Dobbs revived interest in 2022.
- A December 2022 Justice Department opinion said it does not bar mailing abortion drugs when the sender does not intend unlawful use.
- A repeal bill, the Stop Comstock Act (S. 951 and H.R. 2029), is pending in Congress as of June 2026.
The modern paradox is that almost nobody thought about this law for decades. It was a relic of a censorship campaign most people had forgotten. The text outlived the campaign, and that surviving text is what makes the current fight possible.
What the Law Bans
The operative language is narrow and specific. The 1873 statute, formally the Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use, covered four things: obscene publications, contraceptives, abortion-related articles, and a catch-all of “immoral” items. Today, 18 U.S.C. 1461 governs the mail and 1462 governs common carriers, added in 1897, and both still list “[e]very article or thing designed, adapted, or intended for producing abortion.”
The penalty is real. A first offense carries up to 5 years in prison, and a later offense up to ten (Cornell LII). The question is not whether the words exist. The question is what they reach, and that is where the four original categories fared very differently over time.
What the Comstock Act covered then and what is enforceable now. Sources: Cornell LII; KFF.
| Category in the 1873 Act | Status today |
|---|---|
| Obscene publications and images | Still on the books; narrowed by modern First Amendment law |
| Contraceptives | Language struck by Congress in 1971; protected by Griswold (1965) |
| Articles for "producing abortion" | Still on the books, never repealed; center of the current fight |
| "Articles of immoral use" (catch-all) | Largely a dead letter under modern free-speech rulings |
The abortion-mailing line is the one that never went away, and it is the one in dispute now. To understand why courts and Congress chipped away at the rest of the statute but left this piece standing, it helps to see how the law was used in the first place.
How the Law Was Used and Narrowed
The Comstock Act ruined people before it was ever narrowed. Ida Craddock, a writer prosecuted in 1902 for mailing a marriage manual, died by suicide the day before she was to report to federal prison. Margaret Sanger was arrested in 1914 for her birth-control paper The Woman Rebel and jailed for 30 days after opening a Brooklyn clinic in 1916. Anthony Comstock, the law’s namesake, served as a special agent of the Post Office and is credited with thousands of arrests over a tenure that ran from 1873 into the early 1900s.
The arc runs from a censorship law in 1873 through two ruined lives in 1902 and 1914, to a series of court and congressional narrowings in 1936, 1965, and 1971, and finally to a half-century of dormancy after Roe in 1973 that ended with Dobbs in 2022.
- Congress passes the Comstock Act Anthony Comstock becomes a special agent of the Post Office to enforce it.
- Ida Craddock prosecuted for a mailed manual She dies by suicide the day before reporting to federal prison.
- Margaret Sanger arrested under the Act Charged for distributing birth-control information; jailed after a 1916 clinic.
- One Package lets doctors mail contraceptives The first major court narrowing of the statute.
- Griswold protects contraception The Court establishes a privacy right covering married couples.
- Congress strikes the contraception language The abortion-mailing provisions stay on the books.
- Roe makes the abortion ban dormant The abortion-mailing provisions become effectively unenforceable.
- Dobbs revives the dormant statute Overturning Roe reopens the old text as an enforcement theory.
Sources: KFF; Justia; Britannica.
From the 1873 censorship law to the Dobbs-era revival: 1873 — Congress passes the Comstock Act (Anthony Comstock becomes a special agent of the Post Office to enforce it.). 1902 — Ida Craddock prosecuted for a mailed manual (She dies by suicide the day before reporting to federal prison.). 1914 — Margaret Sanger arrested under the Act (Charged for distributing birth-control information; jailed after a 1916 clinic.). 1936 — One Package lets doctors mail contraceptives (The first major court narrowing of the statute.). 1965 — Griswold protects contraception (The Court establishes a privacy right covering married couples.). 1971 — Congress strikes the contraception language (The abortion-mailing provisions stay on the books.). 1973 — Roe makes the abortion ban dormant (The abortion-mailing provisions become effectively unenforceable.). 2022 — Dobbs revives the dormant statute (Overturning Roe reopens the old text as an enforcement theory.).
1873: Congress passed the Comstock Act, and Anthony Comstock became a special agent of the Post Office charged with enforcing it. He used that authority for decades.
1902: Ida Craddock was prosecuted for mailing a marriage manual the government deemed obscene. She died by suicide the day before she was to report to federal prison.
1914: Margaret Sanger was arrested under the Act for distributing birth-control information in her paper The Woman Rebel. She was jailed for 30 days after opening a Brooklyn clinic in 1916.
1936: In United States v. One Package the Second Circuit held that physicians could receive contraceptives by mail, the first major narrowing of the law.
1965: In Griswold v. Connecticut the Supreme Court established a constitutional privacy right and protected the use of contraception.
1971: Congress struck the contraception language from the statute. The abortion-mailing provisions stayed in place.
1973: Roe v. Wade made the abortion-mailing provisions effectively dormant, since the conduct they targeted was now constitutionally protected.
2022: Dobbs v. Jackson overturned Roe, and the dormant text became an active enforcement theory for the first time in half a century.
That half-century of disuse is what makes the current fight possible. A law that nobody enforced for two generations is now being read as if it had been waiting all along.
Why the Comstock Act Is Back
The revival rests on a single argument: that the dormant statute’s plain text already bans mailing mifepristone, misoprostol, and abortion equipment nationwide, with no new law needed. Jonathan Mitchell, the former Texas Solicitor General who designed the Texas bounty-hunter abortion law, and activist Mark Lee Dickson have pressed the reading that the words mean what they say and that no state-law exception applies. Mitchell has argued in interviews that abortion opponents do not need Congress to pass a federal ban because the Comstock Act is already on the books.
The Heritage Foundation’s Project 2025 made enforcement a stated goal. Its Mandate for Leadership calls for the Justice Department to enforce 18 U.S.C. 1461 and 1462 against providers and distributors who mail abortion drugs, a position documented by the Center for American Progress and the National Women’s Law Center.
The countervailing federal position came from the executive branch itself.
In December 2022 the Justice Department’s Office of Legal Counsel concluded that the Act does not bar mailing abortion drugs where the sender lacks intent that they be used unlawfully, noting the drugs have lawful uses including miscarriage management.
Section 1461 does not prohibit the mailing, or the delivery or receipt by mail, of mifepristone or misoprostol where the sender lacks the intent that the recipient of the drugs will use them unlawfully.
Justice Department Office of Legal Counsel, December 2022
The opinion binds federal agencies but not courts, and the Heritage Foundation publicly disputed it. So the meaning of the statute remains unsettled at the level that matters most, which is the courts.
The courts, for their part, have repeatedly declined to decide the question.
Where the courts have left the Comstock question. Sources: Supreme Court; KFF; Guttmacher.
| Case or step | What happened on Comstock |
|---|---|
| DOJ Office of Legal Counsel opinion (Dec 2022) | Concluded mailing is not barred absent unlawful intent |
| FDA v. Alliance for Hippocratic Medicine (2024) | The Supreme Court dismissed on standing and did not reach the Comstock question |
| Louisiana v. FDA, Supreme Court (May 2026) | Blocked the Fifth Circuit's in-person-only order 7-2; the Comstock merits remain open |
The biggest of those cases turned on who could sue, not on what the law means. In FDA v. Alliance for Hippocratic Medicine, decided June 13, 2024, the Supreme Court ruled unanimously that the anti-abortion doctors who challenged mifepristone lacked standing, and it did not reach the Comstock argument at all. Justices Thomas and Alito had raised Comstock at oral argument in March 2024, and Thomas wrote a concurrence, but the Court resolved the case on standing with no dissents.
Where the Fight Stands in 2026
The fight reached the Supreme Court again in 2026. Louisiana sued the FDA in late 2025, arguing its rules allowing mail and telehealth delivery of mifepristone violate the Comstock Act, and in May 2026 the Fifth Circuit agreed and ordered the drug dispensed only in person. On May 14, 2026, the Supreme Court blocked that order 7-2, keeping mail and telehealth access in place while the case continues (SCOTUSblog). Justices Thomas and Alito dissented, and Thomas’s dissent argued the Comstock Act already makes mailing mifepristone a crime and called for prosecution.
Even so, no federal prosecution under the Comstock Act for mailing abortion drugs has been reported as of June 2026. Attorney General Pam Bondi, sworn in February 2025, has not publicly rescinded the 2022 OLC opinion, and her Justice Department has continued to oppose enforcement. Anti-abortion groups, including Students for Life, are pressuring the DOJ to change course.
States have moved in the other direction to protect access.
More than 20 states and the District of Columbia have shield laws protecting providers who mail abortion pills, and some let prescribers use anonymized names on labels, including California, Colorado, New York, and Vermont. By mid-2025, telehealth accounted for about a quarter of U.S. abortions, much of it relying on mailed medication. The protections are being tested in court. Texas Attorney General Ken Paxton sued New York physician Maggie Carpenter in 2025 for mailing pills into Texas, and a New York court blocked enforcement under the state shield law.
The clash between an old federal statute and new state protections is playing out in real time, with the same medication at the center.
Why It Matters
Because the statute was never repealed, whether abortion pills can be mailed may turn on how one 1873 law is read, not on any vote in Congress. A law most people had forgotten could reach into every state, including states where abortion is legal, if a future Justice Department decides to enforce the broad reading. The same pills are used for miscarriage care, so the reach extends past abortion alone.
The encouraging part is that nothing here is settled. The 2022 OLC opinion, the shield laws in more than 20 states, the repeal bill pending in Congress, and the courts’ repeated refusal to enforce the broad reading all show the question is contested and reversible. The dormant law is back on the table, but so are the tools to take it off again.
The Honest Dispute Over a Dormant Law
The disagreement over the Comstock Act is real, and both readings have serious people behind them. The narrow area of agreement is that the law is genuinely still on the books, and its fate now depends on the Justice Department, the courts, and Congress. Where the sides split is on what the surviving text should do.
The plain-language argument comes from Jonathan Mitchell and the Heritage Foundation. They say courts should enforce statutes as written, that the text bans mailing abortion articles and contains no exception for state law, and that if the law is outdated the remedy is for Congress to repeal it, not for judges to read it out of existence. On this view, the dormancy is irrelevant, because a law does not stop being a law just because it went unenforced.
The dormancy and constitutional argument comes from the 2022 OLC opinion and many legal scholars. They say the statute requires intent that the drugs be used unlawfully, that the drugs have lawful uses, and that fifty years of non-enforcement and the post-Roe understanding of the law matter to how it should be read today. Scholars including Danny Li in the Michigan Law Review and the authors of the Yale Law Journal’s “Comstockery” piece argue the broad reading raises overbreadth, vagueness, and equal-protection problems.
We do not declare which reading is correct. That is what the courts and Congress are now deciding, and the honest description is that it is an open dispute.
Frequently asked questions
Was the Comstock Act ever repealed? No. Congress struck the contraception language in 1971, but the abortion-mailing language at 18 U.S.C. 1461 and 1462 remains on the books. That surviving text is what the current fight is about.
Does the Comstock Act ban contraception today? No. The contraception language was struck from the statute in 1971, and the right to use contraception is protected by Griswold v. Connecticut (1965). The Act no longer reaches birth control.
Has anyone been prosecuted under it recently for mailing abortion pills? Not as of June 2026. No federal prosecution under the Comstock Act for mailing abortion drugs has been reported, and the 2022 Justice Department opinion remains in place.
Could it ban abortion nationwide without Congress passing a new law? That is the contested theory. The Justice Department’s 2022 opinion and many legal scholars say no, because the statute requires unlawful intent. The courts have not decided the question, so the answer is genuinely unsettled.
What you can do
-
Tell your members of Congress to support the Stop Comstock Act. S. 951 and H.R. 2029 strike the abortion-mailing language from 18 U.S.C. 1461 and 1462, so a dormant 1873 law cannot be used as a national ban. Use the letter and call script below.
-
Ask your senators and representative for an on-the-record position. Ask each of them to state plainly whether they would support enforcing the Comstock Act against the mailing of abortion medication. Their answer tells you where they stand.
-
Learn the related law so you cannot be misled. Read how due process limits what the government can do to a person, and how executive orders let an administration change enforcement priorities without new legislation.
-
Know your state’s shield law if you rely on or provide telehealth care. More than 20 states protect providers who mail abortion pills, and some protect anonymized prescriptions. Check whether yours is one of them before you need it.
-
Write your representative using the letter below and ask for a clear, on-the-record position on the Stop Comstock Act.